11/24/97 GELAINE M. KARSCHNER v. STEPHEN D.

Appeal from the Order dated September 2, 1997 in the Court of Common Pleas of Elk County, Civil Division, at No. 90-714. Before ROOF, J.

Before: Mcewen, P.j., Hudock And Schiller, JJ.

OPINION PER CURIAM: Filed November 24, 1997

This appeal has been taken from the order entered in the Elk County Court of Common Pleas which sustained the preliminary objections filed by the plaintiff Gelaine Karschner to the motion for post-trial relief filed by defendant Stephen Karschner. Gelaine has filed in this Court a motion to quash the appeal on the ground that it is untimely.

The trial court entered an order of equitable distribution, on May 30, 1997, pursuant to the procedure set forth in Pa.R.C.P. 1920.52 (a), which was entered on the docket on June 2, 1997, and the Rule 236 notice sent to the parties. Thus, pursuant to Pa.R.C.P. 1920.52 (a), no motion for post-trial relief was permitted, although pursuant to Pa.R.C.P. 1930.2, a motion for reconsideration could be filed within 30 days. Stephen filed post-trial motions on June 9, 1997, and, in response, Gelaine filed preliminary objections thereto. Following a hearing on the post-trial motions, the trial court, by order dated August 25, 1997 and filed September 2, 1997, granted Gelaine's preliminary objections and dismissed the motions for post-trial relief. In addition, the court stated that, to the extent that Stephen's motions for post-trial relief could be considered a motion for reconsideration, it too was denied. Stephen filed this appeal on September 25, 1997.

Gelaine contends that the appeal should have been filed no later than July 2, 1997, within 30 days following the entry of the order of equitable distribution on June 2, 1997. See Pa.R.A.P. 903. Stephen's failure to do so, according to Gelaine, renders the appeal untimely.

Rule 1920.52(a) specifically states that in claims involving marital property, "no motion for post-trial relief may be filed...". This prohibition is reiterated in Pa.R.C.P. 1930.2(a), which provides that "there shall be no motions for post-trial relief in any domestic relations matter except where a paternity matter is tried by jury...". Rule 1930.2(b) further provides that:

a party aggrieved by the decision of the court may file a motion for reconsideration in accordance with Rule of Appellate Procedure 1701(b)(3). If the court does not grant the motion for reconsideration within the time permitted, the time for filing a notice of appeal will run as if the motion for reconsideration had never been filed.

Instantly, although the motion filed by Stephen was captioned as a motion for post-trial relief rather than a motion for reconsideration *fn1, the distinction between motions for reconsideration and motions for post-trial relief is not critical to the Disposition of the instant appeal.

Clearly, Stephen was in error in filing a motion for post-trial relief since such a motion is expressly prohibited by the Rules of Civil Procedure. Thus, regardless of the caption affixed to the motion, pursuant to Rule 1930.2(b), Stephen had thirty days from the entry of the order or until July 2, 1997, to file an appeal, unless the trial court expressly vacated the order of May 30, 1997, and granted reconsideration. While the trial court did schedule a hearing on the motion for reconsideration, this was insufficient to toll the appeal period. Schoff v. Richter, 386 Pa. Super. 289, 562 A.2d 912 (1989) (in order to extend time for taking appeal, trial court must vacate order and grant reconsideration; the mere scheduling of a hearing on the matter is insufficient). Since the order was not vacated and no appeal was filed within 30 days of the entry of the final, appealable order of equitable distribution, this appeal must be quashed as untimely. Furthermore, an appeal will not lie from the denial of a motion for reconsideration. Valentine v. Wroten, 580 A.2d 757, 397 Pa. Super. 526 (1990).

Appeal ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.